Greater Southern Area Health Service v Dr Angus

[2007] NSWSC 1211

CITATION:	Greater Southern Area Health Service v Dr Angus [2007] NSWSC 1211
HEARING DATE(S):	16/10/06, 17/10/06, 18/10/06, 19/10/06, 20/10/06, 23/10/06, 24/10/06, 25/10/06, 30/10/06, 1/11/06, 2/11/06
JUDGMENT DATE :	2 November 2007
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	Judgment for the defendant with costs.
PARTIES:	Greater Southern Area Health Service Dr George Angus
FILE NUMBER(S):	SC 20097/2005
COUNSEL:	Plaintiff: Mr D. J. Higgs SC/ Mr M. J. Windsor Defendant: Mr M. T. McCulloch SC/ Mr S. G. Barnes
SOLICITORS:	Plaintiff: General Insurance Law Department Defendant: Blake Dawson Waldron

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

2 November 2007

20097/05 Greater Southern Area Health Service v George Angus

JUDGMENT

HIS HONOUR:

Introduction

1 Jack Tori was born at Wagga Wagga Base Hospital at 10:58 hours on 20 September 1995. During the labour and delivery Jack suffered brain damage that resulted in a number of disabilities including cerebral palsy, epilepsy and moderate intellectual disability. Jack, by his next friend, sued the Greater Southern Area Health Service claiming damages for the negligence of the Service in its management of the labour and delivery. Those proceedings were ultimately settled for the sum of 7.5 million dollars plus costs. Settlement was approved by Levine J on 23 May 2003. The Service has now commenced proceedings against Dr George Angus pursuant to s5(1)(a) of the Law Reform (Miscellaneous Provisions) Act 1946 as a joint tort feasor liable to contribute to the judgment approved by Levine J. Dr Angus was a visiting medical officer at the hospital and the specialist “on call” obstetrician on the day of Jack’s birth. It is not disputed by Dr Angus that the amount of the judgment and the costs paid by the Service to Jack were reasonable.

2 Dr Angus contends that he is not liable to contribute. The crucial questions arising for determination are, first, whether Dr Angus was consulted on the crucial day in connection with the question whether Mrs Tori’s labour should be augmented with intravenous Syntocinon (also known as Oxytocin) and, if so, whether Dr Angus should have ensured that certain procedures were put in place as precautions against the risks associated with such augmentation. It is conceded on behalf of the Service that, if Dr Angus was not informed of the proposal to administer Syntocinon, then there is no basis for claiming a contribution from him. It is not suggested that administration of Syntocinon was inappropriate, let alone negligent. Rather, it is contended that, once administered, certain monitoring procedures should have been carried out because of increased risks to the mother, and particularly to the child, arising from the augmented labour. The plaintiff submits that, had that monitoring been undertaken, intervention in the delivery would have occurred which, in all probability, would have resulted in Jack being born uninjured. It is also argued that Mrs Tori should have been moved out of the birthing suite into a labour ward bed since, once her labour was augmented by Syntocinon, she was no longer a low risk patient and being in a labour ward bed made certain delivery procedures easier to undertake.

The involvement of Dr Angus

3 Dr Angus was at the relevant time a Visiting Medical Officer in obstetrics and gynaecology at the hospital, his appointment having commenced in 1994. It is not disputed that he was responsible for the proper clinical management of all patients admitted to the hospital under his care and he took full clinical responsibility for diagnostic and treatment services provided to those patients, who included Mrs Tori. On 20 September 1995 he was the “on call” obstetrician. At that time he was “on call” every one week in five and “on call” period was for one week, Monday morning to Monday morning.

4 At the relevant time Dr Richard Draper was working as a junior registrar in obstetrics at the hospital. He was under the supervision of the senior registrar in obstetrics and, of course, of the VMOs who specialised in obstetrics and practised at that hospital, including Dr Angus. A description of Dr Draper’s position as “junior obstetric registrar” was a local classification to distinguish between someone in his position on the one hand and, on the other, the registrar undergoing specialist obstetric and gynaecological training, who was designated the senior registrar. At the time of Jack’s birth, Dr Draper had fifteen months’ experience as an obstetric registrar and had been working in New South Wales hospitals since 1991.

5 Dr Draper said that, apart from walking into the delivery room on an urgent call after the baby had been delivered, he has no memory of Mrs Tori and the preceding events. His evidence about those events depends upon the relevant hospital notes and, to some extent, a reconstruction of the circumstances from those notes. He was first given the hospital notes and asked about the circumstances of Mrs Tori’s labour and delivery in May 2001, by which time he had lost any recollection of the events preceding his entry into the delivery room.

6 Dr Draper saw Mrs Tori in the antenatal clinic attached to the hospital on 5 September 1995, when he conducted the usual antenatal assessment. No abnormalities were detected and Mrs Tori was assessed as suitable for continuing antenatal management in the midwife’s clinic. Dr Draper next saw Mrs Tori when she attended the hospital on 19 September 1995 at about 12.20pm. He again conducted the appropriate assessment, including obtaining a history. Amongst other things, Dr Draper noted that Mrs Tori was of thirty eight and a half weeks gestation, her membrane had ruptured spontaneously at 7am that morning and she had been draining since then. Mrs Tori’s pregnancy had been uneventful and there was no significant medical history. Dr Draper observed, on physical examination, that Mrs Tori was not distressed and her blood pressure, pulse and temperature were unremarkable. On palpation of Mrs Tori’s abdomen, Dr Draper found that the foetus was lying in a right occipito-transverse position. Dr Draper assessed Mrs Tori as having a spontaneous rupture of membranes with possible early labour. Dr Draper’s entry in the progress chart contained the following –

“Plan
1 Await events
2 I will D/W [discuss with] Dr Angus, re Syntocinon if not contracting.
3 (CTG) good.”

7 At that time Dr Draper was working a day shift and completed his rostered hours at 5.30pm. He does not recall whether he saw Mrs Tori between that time and the following morning, when he saw her at about 9.15am or 9.20am. (The note states this time was 9.55am but I accept Dr Draper’s evidence that this was a reference to the time the note was made, not the time of the attendance) on 20 September. He started making the note at 9.35am with the date and time and his name but no more. The rest of the note was made at 9.55am and the time changed from 9.35 to 9.55. Mrs Tori was then in the birthing suite on Level 5 of the hospital. This was, unusually it seems, within the labour ward. Dr Draper conducted an examination. He noted that there had been slow progress in the labour since the cervix had dilated to 6cm and contractions had eased over the previous three quarters of an hour. Mrs Tori was pushing. The foetal heart rate (FHR) was being assessed intermittently by a midwife using a Doppler (a hand held ultrasound device) and was satisfactory. On vaginal examination Dr Draper noted that the cervix was fully dilated and the head of the foetus was in an occipito-transverse lie. There was moulding (the baby’s head had changed shape to assume the shape of the pelvic passage) and mild caput (soft tissue swelling on the scalp caused by the pressure of the contractions where the mother was not fully dilated). Dr Draper’s assessment was that Mrs Tori had either a deep transverse arrest or incoordinate contractions with partial rotation from the occipito-posterior position. He explained in his statement that the reference to deep transverse arrest meant that the mother’s labour was arrested because of cephalopelvic disproportion (the pelvis too small and misshapen for the baby’s head). Dr Draper noted the following –

“Plan 1) Syntocinon
2) R/V [review] after 30-60 mins of good contractions.”

8 Dr Draper was extensively cross-examined on both his recollection and reconstruction of events, particularly as to timing. It is not necessary to reproduce that cross-examination. I am satisfied that Dr Draper was an honest witness attempting to tell the truth as best he was able. So far as the issues in this case are concerned, of course, the crucial question to which Dr Draper’s evidence is directed is whether he did in fact consult Dr Angus in connection with the administration of Syntocinon.

9 On 20 September 1995 Dr Draper saw Mrs Tori, as I have said, in the birthing suite within the labour ward of the hospital sometime between 9.15 and 9.20am in the course of his usual rounds. As far as Dr Draper’s recollection went, the rounds would usually start in the maternity ward and then proceed to the labour ward. Dr Draper believed that the assessment to which I have referred and the plan to use Syntocinon occurred as part of the ward round on the morning of the 20th. Dr Draper thought it highly unlikely that Dr Angus did not go and see each of the patients who were in the labour ward. He said that most VMOs visited each of the patients in the ward and that he does not recall that Dr Angus was an exception in this regard. Had Dr Angus seen Mrs Tori with Dr Draper, a note should have been made of that attendance and it was Dr Draper’s usual custom to do so. Dr Draper does not have an opinion one way or another whether Dr Angus was present when he examined Mrs Tori although, as I understand his evidence, he believes that Dr Angus would have been somewhere in the labour ward whilst that examination occurred.

10 The reason Dr Draper had noted on his examination the previous day for the possible administration of Syntocinon, namely if contractions had not commenced, was no longer present since contractions had commenced although they had eased. Accordingly, it was no longer necessary to consult Dr Angus about the use of Syntocinon to induce labour. As I have already mentioned, it was decided to administer Syntocinon to augment labour – a distinctly different purpose – and then review Mrs Tori again after thirty to sixty minutes of good contractions.

11 Augmentation of labour presents a somewhat different picture of risk than is the case with the use of Syntocinon to induce labour. In short, although the objective is to bring about normal contractions, it is a known risk that the contractions can be significantly stronger than normal, with consequential increased intrauterine pressure on the foetus. Dr Draper’s belief is that, because of his relative inexperience and the possible complications that might arise from the use of Syntocinon to augment labour, he would at all events have consulted Dr Angus about it. He has frankly admitted that he has no actual recollection of speaking to Dr Angus about it. His belief that he did so is a reconstruction of likely events resting essentially upon his belief that he was not sufficiently experienced at the time to make the decision without doing so and the strong likelihood that Dr Angus was in the labour ward at the time on his rounds, in which he would usually be accompanied by Dr Draper.

12 Of special significance, as asserted by Dr Draper, is that he had made provisional diagnoses of cephalopelvic disproportion and deep transverse arrest, where the foetus is deep in the pelvis and the head sideways because it has not fitted properly into the pelvis. When this happens, Dr Draper thought that the use of Syntocinon was most likely contra-indicated because, as I understand it, it is not sensible to augment contractions when the baby would not fit through the pelvis. Dr Draper said that the note as to “incoordinate contractions” was a reference to the possibility that the head had been face up when labour started and had commenced to turn around but, when the contractions eased, the head had not completed rotation. Dr Angus thought that the use of Syntocinon was directed at restarting the contractions so that the rotation of the baby’s head, which had in part occurred, would be completed. It was not directed to overcoming a deep transverse arrest.

13 As it happened, and as all the obstetric experts agree, there was in fact no deep transverse arrest and, subject to certain precautions being taken (as to which there is a controversy), augmentation of Mrs Tori’s labour by using Syntocinon was reasonable. The relevance of Dr Draper’s provisional diagnoses is that they would raise the likelihood that the use of Syntocinon was contra-indicated and, accordingly, render it all the more likely that he would have consulted Dr Angus before directing its administration. On the face of it, this is a reasonable argument. However, the sequence of events and the notes themselves make acceptance of it difficult. It seems likely that Dr Draper had directed the use of Syntocinon sometime between 9.15 and 9.30am, had commenced to make a note at 9.35, was for some reason interrupted and left the birthing suite, returning at 9.45 to insert the cannula to commence administration of Syntocinon and then, at 9.55am recommenced his note.

14 Dr Draper’s reconstruction of the circumstances is that he would have discussed administration of Syntocinon at about the time of the examination or shortly after. Had Dr Angus been consulted, discussion of Dr Draper’s provisional diagnoses must inevitably have occurred and Dr Angus concluded either that there was no such deep transverse arrest or that, despite the possibility, Syntocinon should nevertheless be administered. Furthermore, Dr Angus could scarcely have considered Dr Draper’s provisional diagnoses without himself conducting a vaginal examination. Yet, in contradistinction to the earlier note concerning the possible administration of Syntocinon (in less problematic circumstances), when consulting Dr Angus was mentioned, none was made of consulting Dr Angus, even though the note was made after the (contraindicated) Syntocinon was running. Nor is there any note of any attendance on the patient by Dr Angus.

15 It is sensible to be cautious about drawing positive inferences from omissions but it strikes me as very strange that the 9.55am note made no reference to Dr Angus’ opinion as to the likelihood of deep transverse arrest or the appropriateness of administering Syntocinon or, indeed, any consultation with Dr Angus, let alone to any examination of Mrs Tori by Dr Angus. At the same time, ordinary human failing is not rare and it is not at all impossible that Dr Draper simply omitted to make this note on this occasion. Even so, expressly to mention, shortly after the Syntocinon was running, the decision to administer Syntocinon immediately after noting the diagnoses that suggested it was contra-indicated without mentioning a consultation with Dr Angus (where proposal to use Syntocinon in a different context was earlier noted as a matter to be discussed with Dr Angus) strongly suggests that Dr Angus was not, in fact, consulted.

16 The partogram record – made by the midwives – notes at about 9.15 that Student Midwife McNeice made a vaginal examination of Mrs Tori and that her findings were confirmed by Dr Draper. No reference is made to Dr Angus although, had he also attended Mrs Tori, a note should have been made. It seems to me to be unlikely, though of course possible that both Dr Draper and the midwives accidentally omitted to mention Dr Angus’ attendance.

17 Dr Draper was telephoned by nursing staff when the baby’s head was on view and instructed the staff to continue. He agreed in cross-examination that he should at that point have returned to the birthing suite to oversee the delivery. However, he did not do so, perhaps because he was busy at the antenatal clinic. He was paged sometime between 11.05am and 11.10am and returned to he birthing suite in haste about five minutes later. I will come to this point in the sequence of events in due course.

18 I now move to the evidence of Dr Angus about the morning in question. Dr Angus confirmed that he was the on call obstetrician at the hospital on 20 September 1995. He said that he did ward rounds between 8.30am and 9.30am as a part of his duty. The ward round included visits to the labour, maternity, gynaecology and antenatal/post natal wards. He said that, unless he had been asked to visit patients on a particular ward for a specific reason, it was likely that he commenced his round on the labour ward and then went down to the maternity ward and then to the other wards. The senior registered medical officer or the registrar in obstetrics who was on duty at the time would usually accompany him. He said that it was his practice on arrival at the labour ward to go to the nurses station where the SRMO (in this case Dr Draper) or registrar would identify any patients about whom there were concerns and that he would then consult with those patients as required. Relying on his records of the day, Dr Angus believes that he had completed his rounds by 9.30am and left the hospital. On the other hand, he was due to commence a session at the Calvary Hospital private rooms (perhaps five minutes drive from the hospital) at 9.15am. He does not recollect running behind schedule in respect of this session and there was no note on his copy of the list for that day of any delay, although it was his nurses’ practice to make a note if this occurred.

19 In his statement Dr Angus said that he read the hospital records for Mrs Tori, which showed (he mistakenly thought) that the decision made by Dr Draper to augment labour with Syntocinon was made at about 9.45am. (This was the time at which IV Syntocinon was commenced by Dr Draper but the decision had been made, I am sure, before 9:30am.) Dr Angus states categorically that he was not consulted by Dr Draper, the nursing staff who attended Mrs Tori or, for that matter anybody else, in relation to the decision to use Syntocinon or in respect of any part of Mrs Tori’s management prior to the delivery of her baby. However, the doctor agreed that he was present at the hospital between 8.30am and 9.30am, from which it followed that he was not at Calvary at 9.15am.

20 There is no doubt that Dr Angus believes that he was not involved in Mrs Tori’s labour as VMO but the fact is (as he candidly said) he does not have a specific recollection one way or another. Dr Angus agreed that, if nursing staff express some concern about the patient, the doctor would go to see that patient: it was not necessary that the only indication should come from, say, Dr Draper. The doctor agreed that, in the normal course, he would have expected the senior registrar to have performed a check of the patients before he (Dr Angus) arrived in order to assess who needed to be seen. Where the registrar had not undertaken the check, it seems to me that Dr Angus assumed (no doubt rightly) that a member of the nursing staff or a midwife would alert him to any issues that might have required his attention. Dr Angus pointed out that in the labour ward there were two distinct areas: the birthing suite area and the labour ward area. In the former, the patient may not be checked by the registrar but rather by the midwives in whose care the patient was. On the other hand, I take it, patients in the labour ward area should have been checked by the registrar. Dr Angus said that, if he observed whilst on his rounds that Dr Draper was in the birthing suite, he would usually infer that he was there either to inquire whether there was any problem that required examination by a doctor or at the specific request of a midwife because of perceived problems requiring such an examination.

21 Dr Angus said that he would not have expected, in the normal course, to be consulted about a decision to augment labour with Syntocinon after the commencement of the second stage of labour (which is taken to occur when a vaginal examination reveals full dilatation); on the other hand, he would expect to be consulted if the registrar was particularly junior or expressed doubts as to the appropriateness of the use of the drug. He would not have expected to be consulted by a senior registrar or a senior resident or someone towards the end of their training, like Dr Draper, in whom he had full confidence, unless there were particular reasons giving rise to a concern. Of course, if the registrar asked him about whether Syntocinon should be used, then Dr Angus would have been involved. Dr Angus drew the distinction between consultation concerning the use of Syntocinon to induce labour as distinct from augmenting labour: in the former case, there are other options to induce labour whilst in the latter case there is no other option. Accordingly, it was appropriate that Dr Draper should have discussed with him the use of Syntocinon for the former purpose but not for the latter. Dr Angus did not mean to imply, however, as I understand him, that augmentation of labour with Syntocinon is less risky than induction. Indeed he said that this rather depended upon the circumstances: both are conventional procedures and each has the potential for risk. Dr Angus thought that he should have been consulted concerning the use of Syntocinon for induction, not so much because Dr Draper was not competent to make the decision himself but rather because he (Dr Angus) was his senior visiting medical officer and should have been consulted as a matter, as he saw it, of professional courtesy.

22 Dr Angus said that if it had been reported to him by, say, the midwife that there was slow progress and a concern about contractions easing off then he would have personally assessed the patient and done a vaginal examination. It would not be his practice to have the SRMO do the vaginal examination in his presence: he would do the examination himself. On the other hand, if the SRMO had attended earlier and done a vaginal examination and the concerns about the possible need to augment labour were raised there would be no reason to do a vaginal examination. Dr Angus said, however, that if Dr Draper had informed him of the results of his examination, that is to say the provisional diagnoses, and the other history of easing contractions and asked Dr Angus for his opinion, he would have examined Mrs Tori himself. I am inclined to accept this evidence, since it seems to me that it would have been difficult to assess the likelihood of cephalopelvic disproportion without examination.

23 Dr Angus was of the opinion, at all events, that the use of Syntocinon to augment Mrs Tori’s labour was appropriate and agreed that, had he been asked by Dr Draper about it, he would have supported its administration. However, he said that, had he been involved in that decision in the sense of having been approached by Dr Draper, he did not agree that he should have taken steps to ensure that more frequent intermittent auscultation to check the FHR would occur than otherwise would be the ordinary course. Dr Angus thought that that should have happened as a normal practice and did not need his further direction. So far as the mode of monitoring was concerned, Dr Angus thought that continuous cardiotocographic (CTG) monitoring was appropriate, although it was not necessary that it be used. He also agreed that augmentation with Syntocinon meant that the management of the labour is not appropriately classified as low risk. Moreover, the management of the mother after commencing augmentation with Syntocinon made it necessary for the doctor to be informed of the progress of the labour by the midwives, although, as I understand it, Dr Draper was an appropriate doctor in this context. Dr Angus also thought that it was appropriate that Dr Draper, as the note stated, should review the mother in thirty to sixty minutes after administration of the Syntocinon and certainly when he was informed by the midwife that the baby’s head was on view. (By being on view is meant that the top of the baby’s head could be seen in the birth canal. This is different from crowning, when the head is at the perineum.) As to whether Dr Draper should have been present at delivery, Dr Angus said that it was necessary that he should have been there in light of the fact that he had not earlier reviewed the patient as he said he would and, at all events, should have attended when he was informed that the baby’s head was on show. Had this review or these reviews occurred then Dr Draper could have satisfied himself whether or not his presence at delivery was necessary.

24 (As I understand it all the experts are of the view that, at all events, Dr Draper’s presence at delivery was necessary).

25 It was Dr Angus’ view that the need to review did not arise out of the mere fact that possible complications could arise from augmentation with Syntocinon. Rather, it was necessary to determine whether in fact this was a labour that was truly obstructed and another course of action should be taken, or whether it was labour which has responded to Syntocinon and can proceed. The review was necessary even if there is no suggestion that foetal well-being was compromised as, for example, if the FHR was adversely affected.

The evidence of Mr Tori

26 Mr Tori said that he was with his wife when she was transferred from the maternity ward to the birthing suite in the labour ward on 19 September 1995. Mr Tori recalls that on the following morning, Dr Draper examined his wife for perhaps five to ten minutes. Mr Tori recalled that, when Dr Draper had completed his examination and was leaving the birthing suite another doctor came to the entrance of the room and they had a brief conversation for perhaps thirty seconds or so. It is agreed that this was Dr Angus, although Dr Angus does not recall it. Dr Angus did not examine Mrs Tori. So far as doctors are concerned, Mr Tori recalls that Dr Draper returned perhaps twenty minutes or a little more later and, although he cannot remember all the details, it is plain that it was on this occasion that Dr Draper inserted the cannula to administer the Syntocinon.

The evidence of Sister Svilans of events prior to commencement of Syntocinon

27 Sister Svilans is a registered nurse and certified midwife who obtained her general nursing registration in 1985 and became a certified midwife in 1989. She had been working as a nurse at Wagga Wagga Base Hospital from February 1990. Sr Svilans came on duty at 7am on 20 September 1995. With her was SM Robyn McNeice, who was under Sr Svilans’ supervision. Sr Svilans has, for all practical purposes, no independent memory of events prior to shortly before Jack’s birth. Her account depends upon the hospital records and, of course, her understanding of usual practice.

28 As it happened, Mrs Tori was the only undelivered mother in the birthing suite during the course of morning shift, the last delivery in the labour ward having occurred at 8:36am. Sr Svilans, interpreting the note at 9.15am of a vaginal examination demonstrating that Mrs Tori was fully dilated and the second stage (of labour) commenced at 9am, thought that the vaginal examination had been carried out about 9am revealing the full dilatation of the cervix. Sr Svilans said that at or from this time Mrs Tori’s contractions were starting to slow, the baby was turning from the posterior to the anterior position but, because of incoordinate contractions, the baby’s movement was impeded. The principal source for this evidence is the partogram which has a note pertaining to the period between 9am and 9.30am of irregular contractions and the same note for the period between 9.30am and 10am. Sr Svilans said that, although Mrs Tori had progressed vaginally, the contractions were becoming irregular. In that event, the appropriate course is to continue to monitor the contractions and, if they continue to be irregular, then the registrar should be contacted and his plan of action ascertained. Sr Svilans said that, in order to monitor the regularity of contractions, the midwife would place her hand on the woman’s abdomen and palpate the strength of the contractions for a good fifteen minutes. (Whilst dealing with this section of the partogram I should note, because it is relevant having regard to the evidence of the experts, that the note of a double S in this context did not mean that contractions were very strong but, because of the way the form is set out, the frequency of the contractions being every two to three minutes as distinct from indicating – where one S is shown – perhaps, three and a half to four minutes. The partogram shows an observation made by SM McNeice between 9am and 9.30am – at the time when or presumably following the observation about the irregular contractions – and that the baby was at station plus one (ie, one centimetre below the ischial spines). Also noted is that the vaginal examination showed full dilatation.

29 Sr Svilans’ evidence was (at least initially) that the vaginal examination made by Dr Draper referred to in the partogram as having occurred between 9am and 9.30am was not part of his usual daily rounds but because he had been contacted when the observation was made that Mrs Tori’s contractions were becoming irregular and it was necessary that the patient be reviewed by a doctor. The note made by SM McNeice is timed at 9.15, obviously relating to events occurring some time before, and refers to the commencement of the second stage of labour at 9am and a vaginal examination that showed, amongst other things, that Mrs Tori was fully dilated but does not mention irregular contractions, perhaps because an entry had been made on the partogram. A further nursing record was made at 1pm, after the birth, giving a narrative account of events commencing with the observation of slow progress at around 9am and Dr Draper’s arrival in the labour ward to review the patient.

30 Sr Svilans said that (not surprisingly) she was aware of the use of Syntocinon, as a way of dealing with irregular or decreasing contractions, but the drug could not be administered except on the instructions of a doctor. It was in this context that Dr Draper arrived and Sr Svilans was sure that he came as a result of a call. Again there is no reference to the attendance of Dr Angus.

31 Depending on the circumstances it seems that, to justify a conclusion of irregular contractions, something like fifteen minutes of palpation would occur. Accepting the timing in the partogram, the earliest time at which the conclusion of irregular contractions was made was 9am, hence palpation had commenced, say, at 8.45am. The next note of irregular contractions relates to the period from 9.30 to 10am and was probably an observation made at 9.30, given that the Syntocinon was administered at 9.45. Sr Svilans thought that, once the instruction was given, it would take something less than five minutes to set up the Syntocinon, so that the instruction to do so from Dr Draper was probably given at about 9.40am. Sr Svilans does not recall seeing Dr Angus that morning. In the end, Sr Svilans was unable to say whether Dr Draper was called to the birthing suite or was there simply as part of his morning rounds. Nevertheless, it seems to me that, given the need to obtain directions from a doctor in light of the midwife’s examination and that Mrs Tori was in the birthing suite rather than a labour ward bed, it is probable that Dr Draper did attend on a call from Sr Svilans.

Did Dr Draper ask Dr Angus about the use of Syntocinon?

32 I have found this a difficult question to resolve and have wavered several times before coming to my conclusion which can best be formulated in terms of the onus of proof: in the end, I am not satisfied on the balance of probabilities that Dr Draper consulted Dr Angus about the administration of Syntocinon. Although some repetition of what has already been said is involved, I should set out the matters that have most influenced this decision.

33 I should in fairness state at the outset that I regard each of Dr Draper and Dr Angus as honest witnesses attempting to do their best to tell the truth. Not surprisingly, neither of them has an actual recollection of what occurred on the morning of 20 September 1995. Each has attempted to reconstruct what occurred by reliance on the hospital records and their recollections of what was their usual practice at the crucial time. Dr Draper does not go so far as to say that he would not have prescribed the use of Syntocinon for this purpose without consulting Dr Angus. In his first statement he said that it was “most unlikely” that he would do so; echoing this language, he said, “I feel it most likely that I would have consulted a more senior person”. The reasons given by Dr Draper were his “lack of seniority and natural conservatism”. He noted, in addition, that he had earlier encountered patients with large babies relative to the size of the mother’s pelvis but it had been his “usual practice” to consult with senior colleagues.

34 Furthermore, Dr Draper said that he had not previously been confronted with the situation presented in this case. I think that this is a reference to his provisional diagnoses. It is significant, I think, that this was a provisional diagnosis. The uncertainty suggests a need to consult the VMO. Dr Draper did not, however, say that he was not competent to assess whether Syntocinon was appropriate. The scope of Dr Draper’s experience towards the end of 1995 was, not surprisingly, the subject of evidence, which was not in controversy. Dr Angus gave evidence of his understanding as to Dr Draper’s experience at the material time. Although it may well be that Dr Angus’ recollection ascribed to Dr Draper a somewhat greater degree of experience than was actually the case, in the end I do not think that this issue is so clear as to militate significantly in support of the plaintiff’s contention on the ultimate question. I am sceptical of the ability of Dr Draper to assess reliably the extent of his experience at the relevant time with sufficient exactitude to enable much significance to be ascribed to his conclusion that he was too inexperienced to have prescribed Syntocinon without consulting Dr Angus. I reiterate that that this is not to reflect on Dr Draper’s candour but reflects my assessment of the significance of the lapse of time.

35 Significant support for Dr Draper’s belief that it was likely that he did consult is provided by the note in the records made by him to discuss the administration of Syntocinon for the purpose of induction with Dr Angus: if he felt the need to consult for this purpose, a fortiori he needed to consult for augmentation. In the result, the need to consider the use of Syntocinon to induce labour did not arise did not arise since Mrs Tori commenced contractions spontaneously. The possibility that the administration of Syntocinon may have been inadvisable if, as Dr Draper apparently thought possible, there was deep transverse arrest also gives significant support for his conclusion since it seems reasonable to infer that, faced with an increased potential risk from the use of Syntocinon to augment labour, a relatively inexperienced registrar such as Dr Draper would wish to consult his supervising VMO.

36 On the other side of the scales, however, is the omission to note the consultation with Dr Angus, a note that would be all the more likely to be made if the purpose of the consultation was to allay fears of potential harm by administering Syntocinon when it may have been inappropriate. This is especially so when the reference to using Syntocinon is noted immediately following a description of the problematic diagnosis and when the drug is running.

37 Dr Draper’s reconstruction also relies, I think, upon his belief that in the usual course he and Dr Angus would have undertaken rounds of the labour ward together and that, since he has noted an attendance on Mrs Tori, it is likely that Dr Angus was in the ward at the time of that attendance although, it may be, not in his immediate physical vicinity. Dr Draper’s recollection was that Dr Angus visited each patient under his care in the ward and that this would therefore have included Mrs Tori. However, I accept Dr Angus’ evidence that this was, as it happened, not his usual practice. Dr Angus, it will be recalled, said that his attendance on particular patients depended upon whether some matter in relation to their management or care and requiring his attendance was indicated to him either by the nursing staff or the registrar. As to this being his usual course, I think that Dr Angus’ recollection about it is more likely to be correct than Dr Draper’s recollection of Dr Angus’ usual practice. There were something like five other VMOs in obstetrics and gynaecology and the possibility that Dr Draper has attributed to Dr Angus the usual practice of one or more of the other VMOs is not unlikely. Moreover, if Dr Angus did attend on each patient, including Mrs Tori, it is difficult to see why he wasn’t physically present with Dr Draper at the time of the latter’s examination of Mrs Tori. Yet Dr Angus said that if an examination was necessary and he was present, he would conduct it and not leave it to the registrar.

38 Again, I think that Dr Angus’ evidence about this should be accepted. In that event, the fact that the vaginal examination was made by Dr Draper strongly suggests, at least, that Dr Angus was not actually in Dr Draper’s company at that time. I also accept Dr Angus’ evidence that, if Dr Draper had consulted him about the appropriateness of administering Syntocinon to augment labour in light of Dr Draper’s provisional diagnoses following vaginal examination, Dr Angus would himself have examined Mrs Tori. I note that this appears to be inconsistent with earlier evidence given by Dr Angus and which I have noted above but, in the end, the conclusion which I have just expressed about this matter seems to me to reflect the true effect of Dr Angus’ evidence. The earlier evidence was given in response to general questions about when Dr Angus would himself make a vaginal examination but it must be borne in mind that the present context for such an examination must have been Dr Draper’s own (problematic) conclusions from his examination. Although in some respects the evidence about this matter is far from clear, in the result, I am quite satisfied that, had Dr Draper indeed consulted Dr Angus as he believes, it is very likely that Dr Angus would himself have made a vaginal examination. Since it is, in effect, agreed that he did not do so (and I am otherwise satisfied that he did not do so), I think it follows that he was not consulted by Dr Draper.

39 As it seems to me another, though peripheral, line of reasoning supports the conclusion that Dr Angus was not consulted about the administration of the Syntocinon. In substance, Dr Angus’ evidence is that he was not specifically notified of the catastrophic outcome of Jack’s delivery. He said that he was notified of a delivery in respect of an unnamed or unidentified baby and subsequently was made aware of the outcome. He said that (as it happened) he assigned the unspecified delivery to the outcome in Jack’s case but that doing so may or may not have been correct. When he was asked to make a statement about the matter, in order to determine whether he had been involved in treating Mrs Tori, his “mindset…was it was not going to be an issue for me”. Accepting, as I do, that Dr Angus was being candid, this state of mind strikes me as being inconsistent and significantly so with his having been consulted in the way Dr Draper believes he was. I think that, if Dr Angus was consulted and became aware of the catastrophic outcome of Jack’s delivery at an early stage (which seems to be the case) he could not but have been concerned about whether his involvement was material or whether it might be seen to be material and hence make him the subject of an allegation of negligence. The fact that he had no apprehension – which I accept – of such a risk at a time when he must have known whether he had been consulted about Mrs Tori’s labour is a strong indication, in my view, that he had not in fact been consulted.

40 I should mention the evidence of Mr Tori that he recalls Dr Angus as having had a conversation, though only a brief one, with Dr Draper at the entrance to the room. That conversation occurred shortly before the administration of Syntocinon. However, it does not follow that this conversation concerned the possible administration of Syntocinon, although it might suggest that it did. It seems to me that the brevity of the conversation militates against it being the consultation thought by Dr Draper to have occurred. Furthermore, the lapse of time since the event casts a pall of uncertainty over the correctness of Mr Tori’s recollection.

41 It will be evident that much can reasonably be said on both sides of this question. In the end, I find myself unpersuaded that the probabilities favour the conclusion that Dr Angus was consulted about the decision to administer Syntocinon.

The Expert Witnesses

42 In the field of obstetrics and gynaecology, the plaintiff called Professor Norman Beischer and Dr Ian Barrowclough and the defendant Dr Robert Lyneham and Dr Robert Ford. The plaintiff’s neonatologist was Dr Andrew McPhee and the defendant’s Professor Paul Colditz. I found each of these doctors to be an impressive witness. I do not think that they were advocates for the party calling them but genuinely wrestled with the difficult questions which this case raised and conscientiously answered them without regard to whether the answer served the interest of the party calling him. Each is eminent and experienced. Not surprisingly, their experiences vary. In the end, it did not seem to me that the weight or significance to be given to the evidence of any doctor in contradistinction to that of any other of the doctors did depend upon the adequacy or otherwise of his particular skill or experience. In this respect none had, as it were, the advantage over the others. Overall, my conclusion as to the medical questions in this case – conclusions which, where the doctors are not in agreement, I have arrived at with considerable hesitation and not a little diffidence – have not really depended upon my assessment of any differentiation in the level of their expertise. Mostly, my preference has depended on the cogency with which the particular reasoning struck me and my judgment of the facts underlying the opinion.

43 I have therefore not thought it necessary to set out the curricula vitae of each expert. This is not to say that I have not thought that the experience in some particular respect of an individual expert was irrelevant. Indeed, there were frequent acknowledgments, sometimes implicit, by each of the relevance of the experience of another one or more of the experts. Where the experience of an expert has been of particular importance in deciding a particular question, I have mentioned it.

Was administration of Syntocinon appropriate?

44 All experts agreed that the administration of Syntocinon to augment Mrs Tori’s labour should only have been undertaken with the prior approval of Dr Angus. It will be recalled that Dr Angus was not of this opinion. However, I do not think that anything depends upon this difference of view. As to whether Dr Angus should have undertaken, prior to the administration of Syntocinon (of course, if he were consulted) a consultation with and examination of Mrs Tori, Professor Beischer and Dr Barrowclough thought that he should have done so whilst Dr Lyneham and Dr Ford are of the opposite opinion. These answers were unchanged, irrespective of whether there had been any previous or proposed examination (including a vaginal examination) by Dr Draper and/or the midwives.

45 All the experts are agreed that Mrs Tori’s cervix achieved full dilatation and the second stage of labour began probably at 7am and was proved at 9.15am. Professor Beischer was strongly of the view that Syntocinon should not be used to augment or accelerate labour in the second stage but would be looking towards delivery at that point. Dr Barrowclough agreed with this view, although he would not personally use Syntocinon in the second stage of labour. Both agreed, however, that in 1995 there was a reasonable body of reputable medical opinion which did advocate the use of Syntocinon in those circumstances. Neither of these doctors have the view that the use of Syntocinon was such a departure from appropriate medical practice as to constitute negligence. Both Dr Lyneham and Dr Ford were of the view that, when the baby was at station plus one but the progress was arrested and the head is in the occipito-transverse position, this was an indication for the use of Syntocinon. Taking the evidence of the experts as a whole, I think it was in accordance with competent professional practice in 1995 for Syntocinon to be used to augment the mother’s labour when it was.

46 The plaintiff also complains that, before it was decided to administer Syntocinon, consideration should have been given to delivering the baby by caesarean section or forceps. There is a difference of opinion between the obstetricians, Professor Beischer and Dr Barrowclough thinking that this was appropriate whilst Dr Lyneham and Dr Ford though it was not. As to whether the baby could probably have been delivered successfully by forceps or caesarean section as the position appeared at 9.30am, Dr Barrowclough, Dr Lyneham and Dr Ford thought caesarean delivery could probably have been successful but not forceps delivery whilst Professor Beischer thought either mode was probably appropriate, according to the findings of vaginal examination.

47 The obstetricians agree that, had Dr Angus undertaken an examination of Mrs Tori at around 9am, it is likely that he would have derived the same clinical findings as noted by Dr Draper at 9.55am, in particular the provisional diagnoses. Certainly, viewed prospectively, a diagnosis of deep transverse arrest could not be excluded. Dr Barrowclough made the point however (with which, I think, the other doctors agreed) that, with the foetus at station plus 1, the labour should be allowed to continue if the head was occipito-transverse because there was a reasonable chance that it will rotate to anterior-transverse but that if the foetus was at station 2 with no progress, deep transverse arrest should be suspected.

48 The obstetricians were agreed that Dr Draper’s observation at between 9.15am and 9.30am that Mrs Tori was fully dilated, that the baby’s body was right occipito-transverse with the head showing moulding and mild caput would have been likely to demonstrate, if it were present, cephalopelvic disproportion. Furthermore, with the exception that Professor Beischer thought that there should be a consultant review to consider whether or not forceps delivery was appropriate, the obstetricians were also agreed that Dr Angus was entitled to rely on Dr Draper in respect of these observations. A number of the obstetricians made the obvious point that it is not possible to diagnose arrest (at least in the present circumstances) upon one observation since the process is dynamic and the question is whether it has stopped. Dr Lyneham – I think with the agreement of the other obstetricians – made the point that deep transverse arrest could not have been made as a diagnosis in the circumstances though it was a risk that needed to be considered. After all, there had been very good progress with descent of the foetal head from minus one to plus one, a positive development, and the foetus had turned from occipito-posterior to occipito-transverse which was another very positive indication that, as it were, the baby was on the way. Furthermore, the mother had been only pushing for forty-five minutes and the contractions had been going off which, as I understand his evidence, was an obvious explanation for what then appeared to be a possible lack of further progress.

Was it necessary for Dr Angus to have conducted a vaginal examination?

49 As I understand the effect of Dr Angus’ evidence, had he been consulted by Dr Draper concerning the possible use of Syntocinon to augment Mrs Tori’s labour he would himself have conducted an examination and would not have relied on Dr Draper’s examination. As I have already said, Dr Angus did not examine Mrs Tori. This issue is only important if I am wrong about my conclusion that that there was no call for him to have done so because he was not consulted about the possible use of Syntocinon. The ensuing discussion proceeds on the basis that my conclusion is mistaken.

50 Professor Beischer thought that Dr Angus should himself have undertaken a vaginal examination because, in his view, the use of Syntocinon was what he described as “a dangerous finesse” and it was necessary to consider whether delivery by forceps was a more appropriate way of dealing with the situation as it then appeared. Such a course of action, he thought, required an examination by the specialist. Dr Barrowclough agreed in substance with Dr Beischer. Drs Lyneham and Ford, however, were very strongly of the opinion that there was no indication that suggested forceps delivery might have been appropriate at that time. It was their view that Syntocinon was appropriate and that, for the purpose of considering or approving its use, it was reasonable for Dr Angus to have relied on what Dr Draper told him as to the course of labour to that point and the results of Dr Draper’s own examination.

51 Whatever the meaning of the particular of negligence to which I have referred, it is clear that the plaintiff’s case, as it developed, did not propose that the use of Syntocinon, as distinct from forceps delivery, was negligent. I am at all events minded to accept the evidence of Drs Lyneham and Ford on this point but it is not one which I need to determine. Although I accept that there is much to be said for the view that Dr Angus, if consulted, should have conducted his own examination, I do not think that it was negligent for him not to have done so. His evidence that he would have done so, had he been consulted, does not, of course, mean that it would have been negligent for him not to have done so. At all events, the failure to examine Mrs Tori at the time the decision to administer Syntocinon was made, even if a departure from appropriate medical practice, was not a material factor in the course of events which ultimately occurred. Further analysis of the expert evidence on this point is therefore not warranted.

Management following administration of Syntocinon

52 Again, since the question whether Dr Angus was negligent depends, in the circumstances here, whether he was consulted about augmenting Mrs Tori’s labour with Syntocinon, it is only necessary to consider this issue on the assumption that I am mistaken about my principal finding.

53 All the obstetricians are agreed that once the decision was made to augment her labour with Syntocinon, Mrs Tori should have been moved to a bed in the labour ward and not have remained in the birthing suite. The birthing suite, as I have already noted, is located in the labour ward of the hospital. No doubt, as one of the experts agreed, transferring Mrs Tori to a labour ward bed, strictly so called, would have indicated an increased medicalization of her delivery and reflected the change from her status as a low risk patient. However, although it might have been better for Mrs Tori to have been moved, there is no basis for concluding that not to have done so was negligent.

54 More substantially, the plaintiff’s case essentially was that the monitoring of the baby’s heart rate undertaken by the midwives was inadequate and the omission by Dr Draper to give explicit directions to use CTG for this purpose or, at least, more frequent intermittent auscultation fell so far short of appropriate medical care and skill as to be negligent. The failure to identify foetal distress at a sufficiently early time to prevent injury was by far the major factor contributing to the ultimate unfortunate outcome. The plaintiff’s case is that this problem would probably have been discovered at a sufficiently early stage to enable appropriate intervention (by forceps delivery) and the preemption of any significant injury.

55 Only two methods of monitoring are in issue here. The first is known as intermittent auscultation, where FHR is monitored with either a stethoscope or a hand-held ultrasound Doppler apparatus. The other method uses CTG in which a disc-shaped transducer is strapped on to the mother’s abdomen over the area of the uterus and transmits to a recording device, amongst other things, the foetal heart beat and FHR, which is recorded on a continuous graph. As I understand it, the obstetricians are agreed that, according to presently accepted standards, there should have been continuous CTG monitoring when Syntocinon was used to augment Mrs Tori’s labour. There is no question that monitoring FHR was at the time (and, of course, now) an important aspect of the management of labour. I do not have to consider which method was the more appropriate for the period up to the administration of Syntocinon. Intermittent auscultation had been used to that point at what appears to have been appropriate intervals with the FHR found to be within normal limits. It is not controversial that up to then, at least, the labour was proceeding normally, with the exception of the development of uncoordinated contractions indicating the use of Syntocinon, and monitoring by intermittent auscultation was adequate.

56 The use of Syntocinon to augment weak or uncoordinated contractions normalises this process to enable delivery within normal time limits and without undue delay in which the health of both mother and foetus might be compromised. However, there is a risk that contractions may be dangerously strong and compress the foetus in such a way as to impede circulation and hence cause hypoxia. (Anoxia and hypoxia occur when oxygen is not being delivered to a part of the body. Though there is a distinction sometimes drawn between the two terms, in the evidence before me, I understand that they were used interchangeably. I have mostly used the term hypoxia.) Hypoxia can injure the foetus in various ways. In the present case it gave rise to brain injury.

57 CTG monitoring has, for the purpose of detecting hypoxia, significant advantages over intermittent auscultation: it is more sensitive and informative. In particular, a baby can show evidence of intrauterine hypoxia on a CTG though the heart rate is still normal. The CTG also may pick up other events, such as intermittent cord compression or head compression and the contractions. What is being really attempted is to detect hypoxia before the associated acidaemia or acidosis which causes brain damage. It thus enables recognition at a much earlier stage than auscultation that some foetal distress is occurring which would, in turn, indicate active steps might be necessary to ensure safe delivery, including adjusting the physical position of the mother to reduce anatomical obstruction, the use of forceps or even caesarean delivery. In short, CTG monitoring is designed to predict rather than to diagnose problems of hypoxia in the foetus and therefore to enable early intervention before the baby is significantly compromised.

58 Dr Ford, who did not think that continuous CTG monitoring after the administration of Syntocinon to augment the second stage of labour had become normative by 1995, thought there was a generally accepted body of opinion amongst obstetricians that continuous CTG monitoring was preferable and that, at all events, intermittent auscultation needed to be increased in frequency so that, in the absence of active pushing it should occur every five minutes in the second stage of labour and, if pushing is active, after each contraction. It followed that, where a CTG machine was available (as it was in this case), its use was so significantly more advantageous when compared with auscultation that not to have used it was irrational. It may have been that the explanation for not using the CTG machine was that Mrs Tori’s labour mistakenly had not been identified as not low risk.

59 CTG monitoring is now regarded as necessary where the second stage of labour is augmented with Syntocinon. The difficulty is to determine whether this reflected medical opinion at the time of Jack Tori’s birth. I readily accept that many, perhaps most, obstetricians at the time would have regarded the use of CTG as “a good idea”, to use Dr Lyneham’s language, but whether not using this mode of monitoring amounted to negligence is not the same question. In this respect, Dr Lyneham checked the protocol in his teaching hospital, King George V Memorial Hospital then, and now RPA Women and Babies for a copy of the relevant protocol applying in 1995. This hospital delivers more babies than any other in New South Wales. Dr Lyneham noted that the CTG protocol does not include augmentation or, for that matter, induction with Syntocinon as an indication for CTG monitoring. Nor, for that matter, did the relevant protocol applying in Wagga Hospital. Nor did the Royal Australian College of Obstetrics and Gynaecology though, so far as College guidelines are concerned, it should be borne in mind that often the commonly accepted practice amongst practitioners in this field is not enshrined in a guideline until some time after that practice has been adopted. Continuing CTG monitoring was required by the Clinical Guidelines for Intrapartum Foetal Surveillance from the RANZCOG but this was not published until 2001, namely six years after the birth in question here.

60 The protocol at Wagga Base Hospital dealing with the policy and procedure for CTG specified the following indications: patients at risk of uteroplacental insufficiency; the absence of normal foetal movements; and on admission to a hospital of antenatal patients or as ordered thereafter. It is not controversial that the first two of these indications are not presently relevant. The third is in general terms and the question is whether Dr Angus should have ordered the use of CTG (on the assumption, of course, that he directed or approved the use of Syntocinon).

61 Dr Lyneham and Dr Ford were of the view that they would have used the CTG for monitoring the FHR. However, having regard to the lack of any guidelines, whether by way of hospital protocol or from the College, mandating or even encouraging the use of CTG at the time, in the circumstances it was, they thought, within the range of reasonable medical practice for Dr Angus not to have directed CTG monitoring. Professor Beischer and Dr Barrowclough were of the opposite opinion. Professor Beischer was of the view that CTG scanning was essential and that, at all events, continuous monitoring was mandated (which is not controversial) and there was no good reason for doing this by way of intermittent auscultation as distinct from using CTG. It followed that the use of the former rather than the latter method of monitoring which was significantly less informative was not rational. At the same time, I think it is fair to observe that Professor Beischer was very much opposed to the use of Syntocinon at all to augment Mrs Tori’s labour and that this view informed, if it did not control, his insistence upon the necessity to use CTG. Indeed, he said that he has not had experience with using Syntocinon to augment the second stage of labour, in contradistinction to both Dr Ford and Dr Lyneham.

62 Professor Beischer also pointed out that a CTG trace had been taken earlier, namely before the administration of Syntocinon (which was non-reassuring), so plainly a machine was available. In substance, he could not think of any good reason for not using CTG in the circumstances. At all events, since continuous monitoring is necessary, intermittent auscultation would not be sufficient because it is not continuous.

63 Professor Beischer was the co-author with Professor E V Mackay of a widely used textbook Obstetrics and the Newborn, which went through a number of editions. The second edition, published in 1986, in a chapter dealing with the management of normal labour, analgesia and anaesthesia the following is stated –

“If contractions become weak or infrequent, and the fetal heart is satisfactory, an oxytocin infusion may be commenced – this enhancement of labour is relatively safe in nulliparas [mothers having their first birth] but only after a vaginal examination has been performed to assess progress, and to exclude cephalopelvic disproportion. When an oxytocin infusion is used to enhance labour, continuous fetal heart rate monitoring is indicated to exclude hypoxia…”

64 Much the same is stated in the third edition (1997). Professor Beischer said that by continuous foetal heart rate monitoring was meant, and would have been understood to have meant, monitoring by CTG. He said that this view was widely accepted at the time but conceded, I think, that the requirement that monitoring be performed by CTG was not without some controversy within the specialty. Dr Barrowclough, whose expertise was, as I have mentioned, substantial said that when he worked in the public hospital system in New Zealand, working in one major hospital, up to 1986 he saw the use of Syntocinon to induce labour but for many years (the 1970s and 1980s) the monitoring was continuous CTG. He said (and I do not think that this is controversial) that where Syntocinon was used to augment labour in the second stage there was a greater need for monitoring and the general practice was to use CTG for this purpose. He said that it was accepted as necessary and was unaware of any controversy about the matter. Dr Lyneham himself and other obstetricians thought, in 1995, that it was good practice to have continuous CTG monitoring in the event of the use of Syntocinon for augmentation but he added the qualification that not all obstetricians (including those who were “up to date”) always did so, pointing to the protocol in his own hospital. In this respect Dr Lyneham said –

“A hospital like King George V Hospital has a Labour Ward Procedures Committee which consists of the Director of Obstetrics at the hospital, several practising visiting obstetricians or staff specialists, senior midwives and paediatricians, and they meet from time to time and develop protocols specifically for that area. Other hospital protocols are developed by other groups.
This Committee has the duty to assess the evidence available and to then formulate protocols based on the evidence available that would comply also with the facilities available in the hospital and so on, in contemplation of all the evidence available.
They must have done that, because there was a protocol in place at the time. On their analysis of all of the evidence available, and considering facilities and so on, their view was that there were quite a number of indications for CTG monitoring, which I should say had developed a lot, because in the 1970s our labour ward only had one or two monitors with twelve labour ward rooms, and initially there wasn’t one for each room and we had an induction room with just one monitor but things changed – their view, as defined in the protocol, was that there were certain indications that mandated monitoring – oxytocin administration was not one of them – as a routine.”

65 This was the position with the 2001 Protocol, which was thought by Dr Lyneham to mirror that which applied in 1995 but was unavailable. I accept that it had not significantly changed from 1995. Dr Lyneham thought that Professor Beischer’s textbook was ahead of its time. Dr Lyneham pointed out that visiting medical officers did not have to follow the protocol but might need to defend their position if it did not comply. However, Dr Lyneham added “…in this area…some were keener about CTG monitoring than others, really, so that’s how it worked”.

66 Certainly by October 2001 in the King George V Hospital, the protocol, in effect, required continuous CTG of established labour where, for example, it had been prolonged in either the first or the second stage. The obstetricians were agreed, as I understand their evidence, that in all probability at about 9am Mrs Tori had been fully dilated for at least two hours. However, Dr Lyneham expressed the view, with which the other obstetricians in substance agreed, that although it might have crossed the mind of Dr Draper or (if he had examined Mrs Tori at this point) Dr Angus, that she could have been fully dilated well before 9am, there was nothing in the presentation that would have alerted anybody to try to calculate for how long this had been so. It was, as Dr Lyneham said, “just an absolutely standard case: she had made quite good progress, a bit slow at the end but quite good progress during the night; at nine o’clock [she was] fully dilated, head down to plus one from minus two [so that] everything [was] excellent”. In his opinion “there was no reason for the obstetrician to turn his or her mind to [how long it had been since full dilatation had occurred]. Dr Ford and Professor Beischer agreed with this view. Dr Barrowclough agreed but added that, if the obstetrician had appreciated that the second stage of labour had probably been going on for two hours, “this was getting on to a prolonged second stage and therefore you would consider why”. It followed, therefore, that in Dr Barrowclough’s view the 2001 King George V protocol would then have required CTG monitoring. This need, in Dr Barrowclough’s view, was emphasised by the consideration that a decision to augment labour with Syntocinon was made. Dr Beischer was of the same opinion.

67 Dr Lyneham, however, strongly disagreed. There were two reasons for this. The first is that, since whether labour is “prolonged” in the second stage within the meaning of the protocol is determined by when full dilatation is demonstrated on a vaginal examination and, in this case, such an examination occurred at 9am and not relevantly previously, at that time Mrs Tori was not undergoing a prolonged second stage of labour within the meaning of the protocol. Dr Lyneham went on to say. –

“The reason that the hour or two before full dilatation is actually detected is not of relevance is that there are two main problems that can occur if the second stage is prolonged. Firstly, a failure of the baby’s head to descend and progress, but once a certain point is reached generally no further progress will stop until active pushing starts, so the head will just sit where it is with no pushing until the pushing starts. So if someone has an epidural, they are not pushing; it will just stay in that position, pretty well until the sensations come back to push. So failure to descend is not of any relevance if the woman is not pushing, because that is just normal.
The second problem that can occur is foetal hypoxia associated with the diminished placental perfusion of the strong contractions, in particular when the woman is pushing, because this will compromise placental blood flow even further. But that does not start until the active pushing starts. It’s a reason why the foetal heart rate is listened to more frequently.
So that’s why it is irrelevant, from a practical point of view, when exactly full dilation was reached. Whatever way, either taken when full dilatation is diagnosed or when active pushing starts, there is no extrapolation back to suddenly guess, ‘we’ll call the second stage starting here’. There’s no such definition.
So the prolonged second stage, whatever you want to have it – one hour or two hours, and I think the general consensus is now its two hours in a woman having her first baby – a prolonged second stage starts when the second stage starts by any definition, but not by a totally contrived definition unfound in any text.
…
Nowhere in any literature is it suggested that when full dilation is reached, an extrapolation must then be taken back to previous examinations to work out when full dilatation probably occurred and the time starts there. There is no such recommendation in any obstetric text of any historical nature at any time ever. It just never occurs your Honour”.

There was considerable cross-examination about this aspect of Dr Lyneham’s opinion, but I do not think that in the end it went anywhere.

68 Essentially, both Dr Barrowclough and Professor Beischer were of the view that, at all events, because Syntocinon had been administered to augment the second stage, CTG monitoring was essential.

69 The significance of the 2001 protocol is that it did not suggest the use of CTG monitoring where Syntocinon was used to augment labour. Indeed, the use of Syntocinon for this purpose is not referred to in the protocol at all. Dr Lyneham agreed that, accepting that there was a discretion left to the obstetrician to undertake continuous CTG monitoring, if such a machine were available would definitely be advisable to use it when Syntocinon was used to augment labour. However I think that he was very careful not to imply that his practice and, for that matter, his attitude represented a consensus of obstetric opinion at the time such as to set the standard, as it were, so that departure was wrong. Indeed, Dr Lyneham said that whether there was, in terms of peer professional opinion, a need for continuous CTG monitoring when Syntocinon was used for augmentation, was controversial, adding, “our hospital didn’t have a protocol, our college didn’t have a protocol; it was really an individual thing at that time.” In a later answer Dr Lyneham said, “no public hospitals had it [in 1990] as a routine, for example, in the biggest hospital in Sydney.” Registrars, as I understand is not controversial, are under instructions to follow the protocols – as are midwives – although a VMO would have the option (in the present case) of requiring CTG monitoring. As to this, namely the extent to which VMOs required CTG monitoring when Syntocinon was used to augment labour, Dr Lyneham was unable to say, I rather think because the practice was not widespread, although it might have been common.

The practice in Wagga hospital as to CTG monitoring

70 The plaintiff says that, because Mrs Tori’s contractions in the second stage were augmented by Syntocinon, it was necessary to meet adequate standards of medical care, that the FHR should have been monitored by CTG or, at least, by more frequent auscultation. It is contended that, since this would not have been done in the absence of a direction from Dr Angus, he was negligent in failing to give such a direction. I have mentioned that Dr Angus said that he expected that such monitoring – at least by way of more frequent auscultation – would have occurred as a matter of course and that he did not need to give a specific direction of this kind. If the plaintiff is correct about the need for a greater degree of monitoring, then (assuming Dr Angus’ involvement in the decision to use Syntocinon) Dr Angus should have given an appropriate direction and not acted on the basis of assumption.

71 Sr Svilans said that it was not standard practice at the hospital to undertake continuous CTG monitoring unless it had been specifically ordered by the medical practitioner. Furthermore, she said that it would be very unusual to undertake such monitoring if the mother was in the birthing suite, as was Mrs Tori. Unlike deliveries in the labour ward, a delivery in the birthing suite involved the mother leaning in towards a beanbag up until shortly before delivery. She was free to move about in order to relieve or address pain. Accordingly, it was not possible to fix the monitor to the mother and keep it in position as is necessary for continuous CTG monitoring. On the other hand, if the mother was confined to the bed for the purpose of enabling continuous monitoring, it was the practice and indeed desirable for the mother to be transferred across the hallway to the labour ward. The beds in the labour ward better facilitated delivery by virtue of their design. It follows that, had there been a direction to undertake continuous CTG monitoring, the usual practice would have resulted in Mrs Tori being moved from the birthing suite to the labour ward.

72 In the result, the foetal heart beat was monitored using a hand held Doppler monitor. Although I accept Sr Svilans’ evidence about the usual practice, the fact remains that a CTG trace was obtained at 9.59am. CTG monitoring would usually be run for ten to twenty minutes to get good information about the FHR during the contractions. However, the monitoring on this occasion was cut short at three to five minutes and the trace was of no practical use. Sr Svilans cannot now recall why the CTG trace was applied or why it was quickly removed before useful information was obtained. She surmised that the trace was removed because Mrs Tori had requested it be removed, probably because of the way she was positioned. It is clear that Dr Draper did not ask the CTG trace to be obtained and certainly Dr Angus did not. I think the only reasonable inference is that, for some reason, either SM McNeice or Sister Svilans applied the CTG trace of their own volition – at a guess, because Sr Svilans was showing SM McNeice how it worked. In the end, both taking and retaining this trace (which might at all events have been an artefact) is a mystery that leads nowhere except to show that a machine was available to be used had the direction been given.

The course of labour

73 The defendant argues that more frequent monitoring would not, in the event, have made any difference to the outcome. This requires careful consideration of the course of events, with special attention to the period following the showing of the baby’s head. The recollections of those present at the birth have been affected by the lapse of time between the events and when they were first recorded and the very difficult and emotionally laden character of the situation, described quite justifiably by Professor Beischer as “horrendous”. The factual issues in this context have been particularly difficult to determine, and have been made more difficult by the intertwining of medical questions of considerable complexity, in which I have found it necessary as a layman to assess the probabilities of events of which I have no experience or learning and in respect of which eminent specialists differ, profoundly in some respects, despite attempts to give every credit for the judgments of the colleagues with whom they differ.

74 The following account is taken from various sources. The directly relevant material includes, of course, the hospital notes. Also relevant evidence is that of Dr Draper, Sr Svilans, Mr Tori and the reconstructions or interpretations proposed from time to time by the expert witnesses. Where the evidence is in substance not controversial I have by and large not troubled to state the source of the narrated fact. The most significant records comprise the partogram, a progress chart containing notes made by Dr Draper (to which I have already referred) and extensive notes made by SM McNeice jointly with Sr Svilans at 1pm on the day of delivery. Other notes in the progress chart were made at 4.45am, 7am and 9.15am.

75 The partogram is essentially a chart or table showing various observations from 2.16am on the morning of delivery to 10.57am, noting, relevantly for present purposes the foetal blood pressure, maternal pulse rate, cervical dilation, contractions and administration of Syntocinon. From 7am the observations appear to have been made every fifteen minutes. When birth is imminent, the usual practice is for the partogram to record the foetal heart rate and other measurements after each contraction. The partogram shows FHR at fifteen-minute intervals from 9.00am until 10.45am and then at 10.50, 10.52, 10.55 and 10.57am.

76 The note made in the progress chart at 1pm is in SM McNeice’s handwriting but represents the joint recollection of that time of her and Sr Svilans. (SM McNeice provided a statement but was not available to give evidence because of her own medical condition and, accordingly, her statement was admitted into evidence. Regrettably, however, it says little more than is shown by the records with no further explication. No doubt this is because SM McNeice, as she says, does not recall the particular circumstances of this birth.) The account made in the progress chart refers to the course of events from the time of Dr Draper’s attendance to the time of delivery. The note was made some hours after the events, which must inevitably have been extremely stressful and in which the midwives were participants and not mere observers. Although I am quite satisfied that it does not contain any deliberately misleading statements, its reliability must necessarily be approached with caution. In the context of reliability of the hospital notes, I should mention at this point, in particular, the last two entries of FHR made in the partogram at 10.55am and 10.57am. Sr Svilans said that the hospital notes and usual practice suggested that the monitoring of the foetal heart during delivery was undertaken by SM McNeice. In Sr Svilans’ experience, it was often difficult to hear the foetal heart beat once the baby’s head is well down in the birth canal and, in particular, after the head is delivered but before the actual birth. At that time, the pubic bone can make it difficult to hear the foetal heart beat. She said difficulties can also arise in relation to hearing the foetal heart beat by the time the baby’s head has crowned and thereafter. It is a live question whether or not the device is in fact detecting the foetal heart beat, especially when birth is very close or there is an emergency situation.

77 I think that the 10.55am and 10.57am entries in the partogram were made after the event. The neonatalogists are agreed that the entries are inaccurate, since the baby was born clinically dead one minute later. Mr Tori said, in evidence I accept, that shortly before the birth he and SM McNeice were physically supporting his wife who was squatting beside the bed, from which she had just been moved. I describe in detail below what happened immediately before and after this. It is sufficient to state that, if the events I identify occurred at the points I mention, there was no real opportunity for SM McNeice to have attempted to make the last and probably penultimate measurements nor to make the entries. Even if the attempt were made, there would have been significant practical problems with hearing the heart beat. This might explain why SM McNeice noted the FHR as normal: accepting that this was her belief, I quite am satisfied that it could not have been normal at that time. In this event, SM McNeice had mistakenly interpreted whatever it was that she was hearing on auscultation. The simplest explanation may be that the readings were taken but at an earlier time than specified in the entries. I do not have to resolve this conundrum: it is enough to say that the FHR could not have been normal at the times specified.

78 It is convenient to take up the narrative of events at 7am on 20 September 1995, which was when Ms Svilans’ shift commenced. At that time, according to the records, Mrs Tori was undergoing three-minute contractions. She was managing well with nitrous oxide. Maternal observations was said to be within normal limits whilst the foetal heart rate was 130-152 bpm. She was feeling “pushy” on occasions. This was normal and all seemed to be going well. On examination at about 9am, the foetal heart rate was within normal limits, Mrs Tori was fully dilated and the head had progressed down from a previous examination. The contractions were about two to three minutely, but they had become irregular and starting to slow. The foetus was turning from the posterior to the anterior position, which was appropriate, but because of incoordinate contractions, further movement was impeded. It was therefore necessary for the staff to continue to monitor contractions for a little while but, if the irregularity continued, then it was necessary to contact the registrar and ascertain his plan of action. (Although, as has been seen, there was some disagreement amongst the obstetricians as to whether the second stage of labour had commenced by this point, it appears to me that this is largely a question of the use of technical language rather than an important issue for present purposes.) As has already been noted, Dr Draper was called probably about 9.15 or so, conducted a vaginal examination and ordered Syntocinon. I have already dealt with the question whether, in doing so, he consulted Dr Angus.

When did hypoxia commence?

98 It will be seen that a crucial issue in this case is whether it is probable that CGT monitoring from the time that Syntocinon was administered would have indicated foetal distress at a time significantly before delivery and prompted intervention before significant brain injury had occurred. It is principally for this reason that attempting to determine the time it took from clamping to delivery is important. The likelihood that there was a period of sustained or prolonged intermittent asphyxia before clamping and cutting the cord depends on the period between clamping and delivery: the shorter the latter period, the more likely that there was earlier significant asphyxial insult. The crucial relevance of the clamping of the umbilical cord is that, from that moment, the baby was totally dependent on remaining reserves of oxygen and energy substrates until effective resuscitation was introduced. Thus, as the neonatologists point out, once the cord was clamped, oxygen levels in the foetal circulation would have fallen progressively with cascading adverse consequences. However, partial hypoxia may have occurred earlier although here is no direct evidence of it. The obstetric experts agree that, in all likelihood, there was a nuchal cord during labour following augmentation with Syntocinon and that it is likely that strong contractions would cause partial hypoxia. However, there is no evidence of any such event. Even if partial hypoxia occurred, the question remains whether it is probable that it was significant. In this respect, the readings on auscultation as recorded in the partogram at least showed that, if partial hypoxia occurred during the contractions, the FHR returned to normal.

99 It was thought by the experts that, working back from the time of delivery, taking into account the then condition of the baby, it might be possible to infer whether there was significant hypoxia preceding the clamping and, if so, whether it would have been detected by CTG, indicated intervention and prevented, by hastening delivery, the catastrophic outcome. On the other hand, if the condition of the child was adequately explained by the period that elapsed after clamping of the cord, then it cannot be inferred that it was probable that significant earlier signs, detectable by CTG, would have been present. Such earlier signs cannot be excluded but this reasonable possibility would not be a probability. In this event, the plaintiff had failed to establish a causal link between the omission to use CTG monitoring and the baby’s condition and must fail.

100 The starting point is the agreement of the obstetric experts that in all likelihood there was a nuchal cord during labour following augmentation with Syntocinon and that it is likely that strong contractions would cause partial hypoxia. They also agree that, in all likelihood, at the very least the baby suffered periods of partial hypoxia prior to the delivery of his head. Furthermore, the obstetric experts agreed that, in view of the baby being born clinically dead at 10.58am, in all likelihood there were periods of time during the course of labour following augmentation with Syntocinon when the baby would have been suffering from sub-acute hypoxic events sufficient to cause abnormalities to be recorded if a continuous CTG trace had been instituted. This is because there are usually CTG changes before foetal death. This opinion, however, does not go so far as to express agreement on when those sub-hypoxic events occurred: the obstetric experts also agreed that they could not answer the question whether, if the baby had been born within ten minutes of the cord being clamped and cut, in all likelihood a continuous CTG trace would have revealed any or sufficient abnormalities in the foetal heart rate to mandate expedition of delivery. (Although I have mentioned the period of ten minutes of total hypoxia, this is necessarily an approximation, since it is simply not possible to be more precise about small time frames in this context.)

101 It was agreed that, in the circumstances, the option of delivery by caesarean section was not available since that would have entailed dangerous delay. The expedition of delivery agreed on as appropriate was by forceps or, possibly using the McRoberts technique and, if necessary an episiotomy. It was also agreed that an episiotomy probably would have led to immediate delivery. The obstetric experts were agreed that, if there had been continuous CTG monitoring and the baby was delivered with forceps when CTG evidence of hypoxemia was evident, then it is likely that the baby would have been born without injury.

102 Furthermore, all the experts are agreed that, even if Dr Draper or Dr Angus had delivered the baby after the head was first delivered by the midwife, by performing a McRoberts manoeuvre and an episiotomy, it was still likely that the baby would have been born with some injury though its extent could not be known. Professor Beischer was prepared to go so far to say that had this been done the baby would have been born in a much better condition because, in his view, the injury suffered by him was probably due to a combination of acute hypoxia following the cutting of the cord and delay in delivery, superimposed on a state of worsening hypoxemia during the second stage. Whether CTG monitoring would have been likely to have shown signs of foetal distress depended, in both Professor Colditz and Dr McPhee’s view, on the time from clamping the cord to delivery. With respect to the time at which such FHR patterns would have been evident, it is Dr McPhee’s opinion that this would have become increasingly evident in the twenty to thirty minutes leading up to the time of cord clamping, assuming a period of about five minutes or less between clamping and delivery because, given that time frame, the baby’s condition on birth and slow response to resuscitation could not be adequately explained except by asphyxia and accompanying acidosis occurring significantly before that which arose from the clamping of the cord. These conditions, in all likelihood, would have been indicated or, at least suggested, by a continuous CTG scan and hence indicated obstetric intervention. Dr McPhee (and I think Professor Colditz) thought that, in order to explain the extent of injury evident in the baby, absent any pre-existing asphyxia that would have been demonstrated on CTG, at least ten minutes (I think they would add “or so”) needed to elapse between the time of clamping and delivery.

103 Although I have said that the baby was “born dead”, this is a matter of practical rather than technical definition. As the neonatalogists point out, the assessment of the heart rate in such a situation as occurred here does not involve a prolonged period of auscultation (as would be mandatory, for example, in a certification of a death). Typically, they say, a brief period of assessment is applied of perhaps three to five seconds and the initial resuscitation decision is based on this assessment. It is possible, therefore, that very slow or weak heart rates might have been missed. However, as one of the doctor’s observed, to “all intents and purposes, the baby was born ‘dead’”.

104 The question whether, if intermittent auscultation was appropriate, it should have been undertaken through contractions and not merely after contractions was left unclear. Whether the auscultation undertaken were made between contractions or through contractions is also unclear, since the auscultation was conducted by SM McNeice and not by Sr Svilans. As I understand Sr Svilans’ evidence when the birth is imminent, the usual practice is for FHR and other measurements to be made after each contraction and then noted in the partogram. But it is not possible to conclude from this, one way or another, what SM McNeice actually did. I find myself unable to conclude that the plaintiff has established that probably the intermittent auscultation undertaken was not through the contractions as distinct from after them. As to the FHR entries in the partogram, there is, as all doctors agreed, nothing suggesting any bradycardia (abnormally low heart rate, sometimes also called decelerations), although, if the check was not made through contractions but only between contractions the possibility of bradycardia whilst the contractions occurred cannot be excluded.

105 Professor Beischer said, in connection with the cord, it is found around the neck in twenty percent of births: one loop, seventeen; two loops three and so on. He added that the cord can get tight when the head finally passes the last six centimetres down the birth canal. So a tight cord at birth does not indicate how long it has been tight. This cord was tight. The baby can sometimes show signs that it has been strangled in utero by having petechial haemorrhages above where the cord is, of which there is no description in this case. Dr Barrowclough thought that it was likely that there was some partial hypoxia by reason of the cord being wrapped around the neck. Professor Beischer and Dr Barrowclough felt that the tight cord could not be ignored, although it was very difficult to assign any particular significance to it in terms of causing the baby’s condition. Dr Ford (and, I think, Dr Lyneham agreed) said that most babies with the cord around their neck do not have difficulties and that this was the experience of most obstetricians. He thought that the nuchal cord, in itself, did not explain the profound hypoxia that this baby suffered. Dr Ford added, however, that it was unusual to have a tight nuchal cord birth plus shoulder dystocia and he thought that this was “a very significant combination as it turns out”.

106 Dr McPhee when asked about the significance of the cord being around the neck said –

“I think that that probably does add an extra element of hypoxic ischaemic stress, but I am not aware of any studies and I am finding it hard to quantify it.
I would agree that it would probably add an extra bit of time, but whether it was total and incontrovertible, such as clamping the cord – I think that’s very difficult to be certain about.
And I say that because we know that if we take the heart rate observations, and even if we just put them back in a different time, we know that between contractions, the heart rate did come back up to normal, if we take those as valid observations. So I would have to agree, yes, I think that that probably did add some more. I would find it very difficult to sort of quantify that to add to the, if we say five minutes, but there certainly would be some time. I would be very interested in Professor Colditz’s comment on this, because it is a grey zone of a grey zone, in my mind.
His Honour: Professor?
Professor Colditz: I am not sure that there is anything I can say to clarify things. One thing in relation to the ongoing injury that may be occurring after birth – I remind people that we have been arguing or discussing the potential for brain damage to occur with very minor changes, brief changes, in foetal heart rates. The concept that we have more than five minutes with a heart rate of zero now seems to be under question as to whether that can cause brain damage. It is incongruent, in my mind, and I think I will just come back to my already-expressed opinion that it certainly is a period where injury is likely to be occurring”.

107 I think that the medical evidence, taken as a whole, makes it very likely that the nuchal cord tightened during the descent culminating in the delivery of the head. That Sr McNeice did not find the cord on her first attempt is suggestive, I think, of it being tightly wound around the neck. The doctors agreed that the cord was wrapped around the neck from relatively early in the second stage but, although the presence of the nuchal cord raises the possibility that it was occluded before delivery of the head, I do not think that the state of the expert evidence allows me to conclude that, in fact, the nuchal cord contributed to any hypoxia during contractions or otherwise. It follows that I do not infer from the fact that there was a nuchal cord that hypoxic events occurred that were likely to be detected by CTG.

108 A crucial part of the evidence concerns the measurements of FHR before delivery of the head – for reasons already given I disregard the last two entries. Dr Lyneham’s (uncontroversial) opinion was that the intermittent auscultation gave at no time any evidence of foetal compromise. Accordingly, there was no indication to interfere until the head was on view. He noted that pushing was effective and progress continued with the head delivering within what Dr Lyneham called “a reasonable time” after it had come on view, again with no evidence of foetal compromise. As Dr Ford pointed out, much depended on the condition of the baby. In his view, there was no reason to think that the baby was other than in good condition. He accepted that there are features of the variability of the heart rate and the deceleration of the heart rate in terms of its relationship to contractions which are more apparent on a CTG tracing than would be obtained from intermittent auscultations. But there was no evidence that, in this case, troubling decelerations would have been demonstrated. Dr Lyneham did not think there was a case for instrumental delivery, let alone caesarean section, once the head was delivered. Urgency, of course, was called for as soon as the nuchal cord had been clamped. Dr Ford agreed with Dr Lyneham’s view.

109 Dr Beischer, pointed out that a foetus can show evidence of intrauterine hypoxia on a CTG even though the heart rate is still normal. As I have mentioned Dr Beischer and Dr Barrowclough were of the view, at all events, that when the question of administering Syntocinon arose, in their view Mrs Tori had been in labour for something like two hours and consideration to forceps delivery or, possibly, caesarean section should have been undertaken at that point.

110 Dr Ford and Dr Lyneham certainly required intermittent auscultation at least every five minutes after Syntocinon was administered and, after pushing commenced, after each contraction. Broadly speaking, this reflected the monitoring conducted by the midwives, although they only appear to have noted FHR readings after every contraction from 10.45am or, possibly, 10.50am. Dr Lyneham said (not controversially) that, as a practical matter, it is quite easy to listen with a Doppler after each contraction although recording this on the partogram is not so easy. Dr Barrowclough agreed – I think without controversy – that auscultation is used to monitor the FHR and is generally undertaken as soon as the contraction finishes so that what is being listened for is a deceleration in the FHR. In that sense, intermittent auscultation is an appropriate way of monitoring FHR for signs of distress resulting from contractions, although Dr Barrowclough was firmly of the opinion that where Syntocinon was used to augment or enhance contractions in the second stage of labour, continuous CTG monitoring is required and that intermittent auscultation would not be adequate.

111 Dr Lyneham added that he had “observed any number of times a midwife listening with a Doppler – you only have to listen for fifteen seconds and you get it – but not necessarily writing the rate on the partogram, but perhaps doing that or just making a little note and then transferring it later or perhaps every fifteen minutes”. The point he was making is that, even though the rate following the contraction is not necessarily documented on the partogram, this did not rule out what he called the “usual practice of listening”, but just recording it less frequently. He said that it was mandated at the relevant time that the FHR was listened for after each contraction. He commented, “If one has been doing it for a lot of contractions and it’s always been ok, often every second contraction may turn out to be what is done practically”. As I understand it, this evidence was not controversial.

112 I conclude that, if intermittent auscultation was sufficient monitoring, there was no evidence that justified the conclusion that that which was conducted by Sr McNeice was inadequate. If, therefore, it was not inconsistent with appropriate medical care that CTG monitoring was not used, that must be the end of the plaintiff’s case. Nevertheless, I think that I should deal with the contention that CTG monitoring was mandated and examine whether it should be concluded that, more probably than not, a CTG trace would have demonstrated foetal distress and thus indicated, prior to delivery of the head, the need for intervention.

113 It is obvious from what has already been said that a crucial question in this case is whether the baby suffered partial hypoxia – and if so, to what extent – at a time significantly preceding the clamping of the cord. If it did so, then despite not being picked up by the intermittent auscultation, all doctors are agreed that it probably would have been picked up by CTG monitoring. If it had been detected, it is likely that earlier delivery would have been procured, almost certainly by forceps and the injury suffered by the baby probably avoided. If, on the other hand, the injury is sufficiently explained by the events occurring from, say, seven to ten minutes before delivery, then there is no reason to infer any prior significant problem, so that it cannot be inferred that CTG monitoring would have made any difference. It is important to note that one simply cannot assume an accumulation of injury, if what happened at D minus seven minutes or so sufficiently explains the outcome. Even if there had been earlier bradycardia – which everyone accepts as possible, even likely – if one accepts that the observations of Sr McNeice on intermittent auscultation were correct, the FHR returned to normal. There does not seem to be an evidentiary basis for thinking that what might be called intermittent bradycardia caused any injury to this baby except to the extent that it might be necessary to infer it from the baby’s condition at birth. If this inference is not necessary then, even if it had occurred (undetected by auscultation but shown by CTG), it was irrelevant to the outcome except in the sense – and this might be important – that, had it been detected, intervention might have taken place in all likelihood despite the return to normal FHR, and thus the ultimate outcome avoided. In the result, however, I am not satisfied that, if (as it happened) some bradycardia insufficient together with the total hypoxia later occurring to cause or contribute to the ultimate brain injury would have been demonstrated on CTG, intervention earlier than the first attempt to deliver the shoulders would have probably occurred: I think the highest the evidence goes in the result is that intervention would or should have been considered.

114 Thus it is important to examine carefully the inferences that can be drawn from the extent of the injury that was evident from delivery. Dr Ford (as it happened, in the context of the possible significance of the nuchal cord), pointed out that the profound hypoxia suffered by the baby was acute in the sense that it did not precede the delivery by very much at all. This followed from the fact that the baby could be resuscitated. He believed that, if there had been significant hypoxia during the second stage then, more likely than not, there would have been some evidence indicated on intermittent auscultation, whilst acknowledging that CTG is better. I understood Professor Beischer’s and Dr Barrowclough’s evidence to be that they were minded to agree with the general thrust of Dr Lyneham’s and Dr Ford’s opinions as to the inference from the course of resuscitation that the profound hypoxia suffered by the baby was very acute. Dr Ford summed up his opinion in this way –

“If I may, your Honour, really reiterate that the hypoxia that this baby experienced was profound…but I believe must have been acute, because it was resuscitated. If the baby had had a significant hypoxic insult before that, then it is unlikely that that would be the case.
If there was a significant hypoxic event immediately prior to delivery, I would expect that there would be some bradycardia picked up on intermittent auscultation. We all agree that CTG would be better, but for this profound hypoxia, bradycardia would be expected. So it’s possible that the cord could have been obstructed at the late stage [as the baby is moving down the birth canal] and that added to the problem. But I think it was at the late stage, it was in the process of the delivery and in the process of shoulder dystocia.“

115 In response Professor Beischer said –

“I think there was acute hypoxia once the baby’s head was born, but my point is that there could have been hypoxia before that occurred, because of the cord.”

116 Both Professor Beischer and Dr Barrowclough in the end agreed that the acute hypoxic event alone – that is, leaving aside the earlier possible partial hypoxia – could be sufficient to account for the baby having been born dead. This concession was substantially made, I think, in reliance upon the article discovered late by Dr Lyneham part of which I set out above. The study concluded that –

“Antenatal prediction of shoulder dystocia is imprecise, and the majority of deliveries were attended by midwives. A relatively brief delay in delivery of the shoulders may be associated with a fatal outcome.”

Of significance is the following passage –

“In 14 cases there was fetal distress before delivery of the head. Fetal distress was diagnosed if the notes recorded abnormal cardiotocograph, significant meconium staining of the liquor, or acidoses on a scalp pH sample. In 45 cases the maternal notes contained sufficient information to make a reasonable estimate of the interval between delivery of the head and the rest of the baby. This ‘head-body delivery interval’ was recorded as less than five minutes in 21 (47%) and only 9 (20%) had a head-body delivery interval of greater than 10 minutes. Fetal compromise was no more frequent in those babies who died following a short head-body delivery interval.”

117 Both Dr Ford and Dr Lyneham thus thought that, given the fact that fatal deliveries occurred in a significant number of cases of shoulder dystocia with a head-body delivery interval of less than five minutes, even with only a five minute period of total anoxia following clamping to the point of delivery in this case, there was no need to hypothesise an earlier period of (significant) hypoxia. I would add the point (with some diffidence) that, as I read the article, there was no evidence of total anoxia for the whole of that five-minute period; moreover, here we are dealing with a badly injured child but one who was able to be resuscitated. This seems to me to strengthen the conclusions expressed by Drs Ford and Lyneham.

118 The article also shows the very considerable complexity of the mechanisms of cerebral injury, which, I think, add to the caution which must attend attempts to reason backwards from such injury to the period and character of prior causative insults.

119 The end position reached by Doctors Ford and Lyneham seems to me to have been that the former thought that, there being no evidence of previous hypoxia, it can reasonably be inferred from the nature of the injury and the resuscitation of a “dead” baby that there was an episode of acute profound hypoxia commencing from the point that the head was delivered (when there was both shoulder dystocia and a tight nuchal cord). Moreover, “the resuscitation of this profoundly suppressed baby probably wouldn’t have been successful” if there had been significant periods of prior hypoxia (ex hypothesi too slight to be demonstrated on auscultation but able to be detected by the more sensitive CTG). On the other hand, Professor Beischer and Dr Barrowclough believed that it was probable that there would have been episodes of (as I understand it, prolonged) hypoxia prior to demonstration of shoulder dystocia that played a role in the ultimate condition and, even if they were not able to have been detected by auscultation, they would have been demonstrated on a CTG trace. I think that this opinion rested substantially upon the assumption that the period between clamping and delivery was only about five minutes, which I have concluded was too short. If the view of Dr Lyneham and Dr Ford is right (and especially if the period was, as I have found, more like seven or eight minutes not counting the period after the head was delivered but before the clamping), it is not possible to conclude that more probably than not CTG monitoring would have shown foetal distress and hence, led to earlier intervention, with the consequence that Jack would have probably been born without injury or significant injury.

120 What light is shed upon this problem by the neonatologists? Professor Colditz said (and I do not think that it is controversial) “there may have been variable decelerations [during contractions], they may have been too short, as it were, to have been picked up on the intermittent auscultation periods…” He also pointed out, (again I think this is not controversial) –

“Certainly, if there is a sustained bradycardia, then that is cause for urgent interventions. But, of course, equally, that would have been picked up by these frequent intermittent auscultations. The concept that shorter periods of bradycardia need immediate intervention is just not part of standard practice. There is a duration of time built into the various guidelines [from the Australian College of Obstetrics and Gynaecology and the British College of Obstetrics and Gynaecology.]

121 However, Professor Colditz went on to say that an observation of short term bradycardia would be an indication that some remedial action ought to be taken, for example, placing a woman who was on her side on her back or making some other manipulations. And it would be necessary to wait to see whether these attempts relieved the symptoms. He pointed out (and I do not think Dr McPhee disagreed), that intermittent decelerations are quite common in foetuses that are not compromised. Generally speaking, Professor Colditz observed, “there is no evidence that intermittent versus continuous monitoring impacts on outcomes”, although the Professor accepted that continuous CTG monitoring more easily enables detection of late or variable decelerations, compared with intermittent auscultation. After all, as Dr McPhee agreed, in the overwhelming number of cases, augmentation with Syntocinon can be carried out safely. If there were any signs of foetal distress on CTG or other monitoring, Professor Colditz agreed that it would certainly be an obstetric decision as to what action would be taken, including, of course, forceps delivery.

122 The neo-natologists are agreed that resuscitation was effective in that it achieved heart rate some time between five and ten minutes of age, a good cardiac output by twenty minutes and independent ventilation soon after. However, the slow response to the resuscitation suggested either that there was a profound proceeding asphyxial insult and/or some deficiencies in the process of the resuscitative effort. The relative contributions of these factors is difficult to assess, although it seems implicit that, the shorter the duration of the episode of cord-clamping-to-delivery, the greater the contribution of an element of ongoing asphyxia related to sub-optimal resuscitation. However, as Dr McPhee observed, there was no evidence available to support a conclusion of sub-optimal resuscitation. Whether optimal or not, there was at least a five minute or so episode of total asphyxia and irreversible brain injury likely to have developed aggressively during that time. This scenario requires, I think, acceptance of the likelihood of earlier compromise (that, as it happens, seems not to have been detected). Professor Colditz thought that the scenario proposed by Dr McPhee was possible though, if the true duration of the episode of total asphyxia was (I think “about” should be implied) ten minutes, it is not necessary to infer significant preceding compromise. Professor Colditz thought that this was the more likely scenario because, as it seemed to him, it fitted best with the available clinical data. In considering the period of total anoxia, it is necessary to bear in mind that there was no heartbeat or respiration for a further five minutes after birth. There does not appear to be any basis for disregarding this period when attempting to assess the likelihood of episodes of pre-clamping partial hypoxia adversely affecting the baby’s wellness at the time of clamping.

123 To sum up, I think that there is substantial agreement that, because of the nature of the cerebral palsy suffered by Jack and the fact that he could be resuscitated, that “the likely process of injury was that of an acute severe insult” (to use the language of Dr McPhee). If the period of total asphyxia was only five minutes, then accepting a contribution by cascading consequences after birth and before adequate circulation was restored, it is still necessary I think – taking the medical evidence as a whole – to infer that Jack was already in poor condition from the progressive and cumulative development of circulatory compromise following the administration of Syntocinon. I have already said that I do not accept that the readings of FHR noted as having been made at 10.56 and 10.57am were accurate, even assuming (which is doubtful) that auscultation was taking place at those times. I think also there is good reason for doubting the accuracy of the note made at 10.52am. The earlier readings were inconsistent with substantial or prolonged periods of hypoxia, although decelerations during the contractions and sub-acute episodes of hypoxia with evolving cerebral injury may have been undetected. If there was a period of about ten minutes of total hypoxia up to delivery, I think all doctors by and large agree it is not necessary to assume earlier significant insult and no basis for inferring that it occurred, a fortiori if the period of post partum anoxia is added. As to a period of total hypoxia of greater than five minutes but less than ten, the doctors are in less agreement. As I have said, I think that the period from clamping to delivery was about seven to eight minutes. If several minutes of substantial, though perhaps not total hypoxia, occurred when the first attempt at delivery was made – resulting from the tight nuchal cord in combination with compression in the birth canal from shoulder dystocia – the period of about ten minutes is easily reached, though the additional small portion may not have been totally anoxic. Adding the post-partum anoxia makes the period fifteen minutes.

124 It will be seen that a substantial degree of uncertainty surrounds both the extent of any prior periods of hypoxia and their effects if they occurred. The period of total hypoxia in the period immediately preceding birth is capable only of approximate determination. The period of total hypoxia necessary to produce the injuries suffered by the baby is also uncertain, so that even five minutes may have done so. The accumulation of these uncertainties must multiply the uncertainty of the probabilities. In the result, the plaintiff has failed to persuade me that, more probably than not, the foetus suffered hypoxic insult before the first unsuccessful attempt to deliver the shoulders which CGT monitoring would have been likely to detect.

Other causation issues

125 These need only be considered if I am wrong about the irrelevance of the lack of CTG monitoring.

126 The expert obstetricians differed as to whether it was necessary that Dr Draper should have returned to assess Mrs Tori once he was informed by the midwife that the baby’s head was on view. Had he done so and been present when the first unsuccessful attempt to delivery the shoulders was undertaken, he may have intervened with an episiotomy and forceps. However, there would still have been the need to locate the cord. It is possible that delivery after clamping would have saved two or three minutes and probable that this would have made a difference but the medical evidence does not permit me to determine how much.

127 Doctors Lyneham and Ford thought it was not necessary for Dr Draper to have been present at this time because, as Dr Lyneham put it, everything was looking good at that time –

“Your Honour, when the oxytocin was started it was with a view to giving it for thirty to sixty minutes and then reassessing the situation. Either the labour would progress or there would develop a problem or deep transverse arrest or whatever. Once the foetal head was on view, that indicated that the second stage has presented very effectively and very normally; the head was now on view and one would anticipate delivery of the head spontaneously within a relatively short time. Progress had been excellent, and one could not have been happier about the situation.”

128 On the other hand, Dr Barrowclough thought that he should have attended because the presentation was not normal in the sense that Dr Draper had provisionally diagnosed a transverse arrest and he should have attended to confirm that this had not occurred. Professor Beischer agreed with this view but added that, at all events, it was a finesse to put up a Syntocinon drip in the second stage of labour, that this is associated with problems and therefore it was worthwhile that the resident should be present at delivery, although not (as all experts agreed) the VMO.

129 This matter is capable of significance because, even if it was probable that CTG monitoring would have detected foetal compromise in time for intervention to have occurred, and thus (assuming that Dr Angus was negligent in not having directed its use) had Dr Draper attended when the head crowned, some or all of the ultimate injuries may have been avoided. Whether it was necessary for Dr Draper to have attended when the head crowned (and made arrangements to ensure his notification) is a matter of degree, with much to commend the contradictory opinions. In the end, I am unpersuaded that it was necessary. It follows that Dr Draper’s non- attendance did not interrupt the path of causation arising from the absence of CTG monitoring. It was agreed that Dr Draper should have been present at delivery. I am unpersuaded that his presence would have made a significant difference: this depends on what he would probably have done in the circumstances, as to which I cannot come to any useful conclusions. Nor am I persuaded, at all events, that it was negligent for him not to have been present.

130 It was also suggested that the midwives should have alerted the medical staff of the emergency before they did. I am satisfied that the notification was given as soon as it was reasonably possible after the possible need for resuscitation was known. There was some evidence directed to the adequacy of the resuscitation procedure. I do not propose to set it out in detail. It is sufficient to say that I am not persuaded that there was any negligence attending what was done. It is, perhaps, arguable that some decisions, eg as to administration of adrenalin, were not optimal but a judgment about this depends so much on interpretation of relatively limited information that I do not see how I could come to any rational conclusion adverse to those undertaking this very difficult task and I am unpersuaded that I should do so. At all events, that a different approach might have been justified and that taken might be criticised is not a sufficient basis for inferring negligence. Even if a different approach had been taken, there is no good reason for concluding that it probably would have made a significant difference.

Summary of important findings

1. Dr Draper did not consult Dr Angus about whether Syntocinon should be administered.

2. Dr Angus did not direct the midwives or, for that matter, Dr Draper, that frequent intermittent auscultation was necessary and, in particular, that such auscultation should occur through the contractions.

3. Dr Angus did not direct the use of CTG monitoring.

4. Failing to direct frequent intermittent auscultation did not fall short of proper medical standards operating at the time and Dr Angus rightly assumed that the midwives would undertake auscultation with the necessary frequency. Not directing CTG monitoring was not outside the range of appropriate medical practice at the relevant time, although auscultation was, even at this time, generally acknowledged as less informative than CTG monitoring.

5. At all events, the omission to monitor by CTG or, if it did not occur, to monitor by auscultation with sufficient frequency, made no material contribution to the injury suffered by Jack Tori.

Apportionment

131 In light of my findings, the question of apportionment does not arise.

Verdict

132 It follows that there must be judgment for the defendant with costs.

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